Haji ABDUL HAMID KHAN Versus AMANULLAH JAN KHATTAK

MUHAMMAD DAUD KHAN, J.--- Through instant revision petition, petitioner has assailed the judgment and decree of learned District Judge, Lakki Marwat dated 26-6-2013 and that of learned Senior Civil Judge, Lakki Marwat dated 19-10-2012, whereby the suit of petitioner was dismissed by both the lower Courts.

2. Precisely stated facts of the case giving rise to this petition are that petitioner/plaintiff Haji-Abdul Hameed Khan filed a suit for declaration and permanent injunction against the respondents/ defendants, to the effect that Tehsil Municipal Administration, Sarai Naurang District Lakki Marwat, respondent No.2 invited tender for auction of contract of collection of taxes in different disciplines for the year 2012-13, from the qualified contractors, through publication in daily Mashriq, Peshawar, (Exh.P.W.1/1) and Ausaf (Exh.P.W.1/3). In pursuance of this advertisement, petitioner along with others participated in the auction of contract for collection of taxes of "cattle fair" Serai Naurang for the year 2012-13. Petitioner was declared successful bidder, as he had offered bid @ Rs.1,92,10,000 which was 15.2% increase from the previous year and after completing all the codel formalities, a letter No. 716/TMA/Serai Naurang, dated 3-5-2012 (Exh.P.W.1/10) was issued by respondent No.2, to respondent No.1 i.e. the Secretary Local Council Board, Khyber Pakhtunkhwa Peshawar for approval. The respondent No.1, initially delayed and subsequently had approved the contract but for the increase rate of Rs.02,03,74,000 at the ratio of 22% increase over the last year bid, in favour of petitioner, vide impugned letter No. AOII/ LCB/9-27/2010 dated 29-6-2012, despite the fact that the bid was accepted by respondent No.2, at the rate of 15.2%, which is liable to be declared as null and void.

3. The suit was contested by the defendants by filing written statement, on variety of grounds, factual as well as legal, which culminated into framing of issues. The parties led pro and contra evidence in support of their respective stance and on conclusion of trial, petitioner's suit was dismissed on the ground that plaintiff/ petitioner has failed to established his case, as the defendants/ respondent No.1 is competent authority to do so. Appeal filed thereagainst, also met the same fate. Hence, instant revision petition.

4. Learned counsel for petitioner vehemently argued that both the courts below have wrongly decided the lis and the impugned judgments and decrees are the result of mis-reading and non-reading of evidence, miscarriage of justice and mis-appreciation of law and thereby committed illegality and irregularity and exercised their jurisdiction which was not vested to them. He further contends that the petitioner is successful bidder, which was already increase of 15.2 % of the previous bid, as such, respondent No.1 was not authorized to further increase the bid @ 22% without prior consent and knowledge of the petitioner.

5. On the other hand learned counsel for respondents contended that respondent No.1, who is Secretary Local Council Board, has the authority to cancel, accept or increase the bid; that the suit of petitioner is not maintainable and both the courts below have rightly dismissed his lis. Learned D.A.G. appearing on behalf of official respondents, also supported the arguments advanced by learned counsel for respondents.

6. Arguments of learned counsel for the parties heard at length and record perused with their valuable assistance.

7. Record reveals that the respondents/ defendants, floated a tender for auction of contract of collection of taxes in different disciplines for the year 2012-13, from the qualified contractors, through publication in daily Mashriq, Peshawar, (Exh.P.W.1/1) and Ausaf (Exh.P.W.1/3). In pursuance of this advertisement, petitioner along with others as per list Exh.P.W.1/5, participated in the auction, whereby petitioner was declared successful bidder, as he had offered bid @ Rs.1,92,10,000 which was 15.2% increase from the previous year and after completing all the codel formalities, a letter No. 716/TMA/Serai Naurang, dated 3-5-2012 (Exh.P.W.1/10) was issued by respondent No.2, to respondent No.1 i.e. the Secretary Local Council Board, Khyber Pakhtunkhwa Peshawar for approval, but the respondent No.1, approved the contract for the increase rate of Rs.02,03,74,000 at the ratio of 22% increase over the previous year bid, despite the fact that the bid was accepted by respondent No.2, at the rate of Rs.1,92,10,000 at the ratio of 15.2%.

8. Admittedly the petitioner/plaintiff is successful highest bidder, as he offered Rs.1,92,10,000 with 15.2% increase of the previous year bid, in the public auction of the "Annual Income Contract of Cattle Fare of Serai Naurang" for the year 2012-13 and on completion of legal formalities of auction proceeding respondent No.2 issued a letter No.716/TMA Serai Naurang dated 3-5-2012 for approval, but without any notice or hearing the petitioner, respondent No.1 approved the auction but enhanced the lease consideration up to Rs.02,03,74,000 @ 22% increase of the last bid, without giving any plausible, convincing reason.

9. Perusal of the evidence available on file, reflects that P.W.1, Mukhtiar Ali, Court Clerk, TMA, Office Serai Naurang, exhibited the relevant documents, and accepted, that the bid offered by petitioner @ Rs.19210000 was accepted a successful highest bid and for increase of bid rates he stated in cross-examination that:

Whereas, when TOR, Sher Afzal Khan TMA Serai Naurang, who is the witness of the lease agreement Ex:PW 1/15, appeared and examined as DW-1, has categorically admitted the transparency of auction process conducted by respondent No.2, held in public meeting, participated and competed by all persons those were duly qualified for competition. The witness also admitted the petitioner/ plaintiff was successful highest bidder and only his name was sent for approval. He stated that:-

10. The contention of respondent that respondent No.1, has the authority to accept, cancel or enhance the bid / auction proceedings and learned counsel for respondent produce a copy of Model terms and conditions for the contracts of cattle fair, for the year 2012-13, issued by government of Khyber Pakhtunkhwa Local Government and Rural Development Department, Local Council Board, No. AO-II/LCB/6-11/ 2013 dated 20-3-2013, but perusal of the same manifests that there is no where mentioned that the LCB can enhance the contract amount, once the bid finalized after the fall of hammer and completion of auction proceedings.

11. If at all, the LCB has any discretion, then it shall be utilized after giving notice of hearing to the petitioner, as it is settled law that no detrimental action can be taken without any prior notice and without assigning any valid reasons, but nothing in black and white is available on file, that how and for what reasons the LCB has enhanced the bid amount, once accepted to be the highest. It can safely be said that the LCB being approving authority can accept or reject the auction process, but cannot enhance lease amount, which has been conducted by transparent manner in open auction, which was not questioned or objected by any government functionary or the public. The enhancement of the impugned lease amount in the name of discretion is unlawful as discretion used arbitrarily is not permissible in the eye of law.

12. I am afraid such brazen discretion cannot be left to be exercised by public functionary like Secretary LCB, respondent No.1. I have no cavil to the proposition that authority may reserve to itself a right to the auction, as in case of rejection a new auction might be conducted, but he has no authority to enhance the bid amount, which has already been resulted in open competition, participated by several participants, which is manifest from the list of call deposited participants of the auction, Exh.P.W.1/5 and Exh.P.W.1/6. The impugned order without giving any notice to the petitioner, who is successful bidder, without assigning any reason is against the law and without lawful authority. The record reveals that advertisement issued by the Administrator TMA, who vide letter dated 3-5-2012, Exh.P.W.1/10 acknowledged the reasonableness of the auction and forwarded for approval, but respondent No.1 through impugned letter approved the contract of cattle fair @ 22% increase, without any plausible reasons.

13. Both the courts below did not appreciate the evidence produced by the parties in its true perspective and failed to reach at correct conclusion. By dismissing the suit of the petitioner/plaintiff, both the courts below have committed gross illegality and irregularity, while rendering the impugned judgments, which are not tenable.

14. For what has been discussed above, the impugned letter No. AOII/ LCB/9-27/2010 dated 29-6-2012 issued by Deputy Secretary-II, Local Council Board Khyber Pakhtunkhwa to the extent of increased amount is held illegal, without lawful authority, as such is hereby cancelled. This petition is allowed, resultantly the impugned judgments and decrees of both the Courts below are set aside and the suit of petitioner is decreed. With no order as to costs.

SAK/478/P Revision accepted.